Kent Howe, Land Management, explained the first step is to determine if
the post acknowledgement plan amendment information is adequate.He said if it is, they would determine
whether it was a significant site.He
recalled that on April 18 the Eugene City Council moved to direct staff to
prepare a resolution that finds there is not sufficient evidence that a
significant resource exists on the subject site consistent with the attached
draft findings.He added they did an
amendment to an ordinance instead of a resolution. He said a second motion was made to move to direct that the
findings could not be supported because on further review there was sufficient
evidence that there were significant resources on the site, and they asked the
city manager to schedule a work session for continued deliberations on the
remaining issues. Howe reported the vote on the substitute motion failed and
that moved them to the original motion and it passed.He said it was a tie and the mayor broke the tie, so the formal
action taken by the City of Eugene was that their finding was the site does not
meet the significance test in the Goal 5 Rule.He indicated that was the end of their action.

Fleenor asked if the City of Eugene was asked to prepare a final
resolution with the findings of significance before the Board of Commissioners
deliberates.

Howe stated that was a policy call by the Board.He said they could decide whether they want
to wait, knowing the City of Eugene has taken a formal motion that a resolution
will be put before them with findings that states it is not a significant
site.He indicated the Board of
Commissioners could wait for that in a final format or they could proceed
today.

Sorenson asked what the role of the Board of Commissioners is if the
City of Eugene voted that there was insufficient evidence that a significant
resource exists.

Howe explained that this is located within the Metro Plan and the Metro
Plan Amendment procedures are involved.He said the Board of Commissioners and the Eugene City Council for this proposed
action have to adopt identical revisions for the plan amendment to occur.He said that Eugene took action that gives
the Board of Commissioners an indication where the City is.He added that the Board of Commissioners
should start down the process of the analysis. He said it might get to the same
point that Eugene did on the determination of significance.He added if it does not, he recommended the
Board go through the process of the Goal 5 Rule to its completion.He said if the Board gets to the point where
they determine that they have a significant site and the impacts have been
minimized, then the Board of Commissioners will have to come to a yes.He noted the Eugene City Council is at no
and for the Metro Plan Amendment procedures they would go to MPC.He said if the Board of Commissioners
determines that it is a significant site but down the process of determining
impacts they are not minimized, they would go through the ESEE analysis and
conclude they can’t be minimized or if they are minimized, there is still an
impact and elect not to protect the site.He indicated then the Board of Commissioners and Eugene City Council
would have to come to no and that would be the end.

Dwyer recalled that this was not an expansion.He indicated it was a source of aggregate
that would allow the present company to continue at its current rate.He thought they should move forward and
follow the facts.

Green concurred with Dwyer to do what they have to, as they don’t have
control with the City of Eugene.

Dwyer asked what happened with an objective third party.

Howe responded that the City of Eugene didn’t entertain that idea.

Dwyer stated that the City of Eugene didn’t want any evidence that
might support the fact that there is a significant resource.He said it shows the City of Eugene wanted
to stop the process.He said Eugene
knows there is gravel 400 feet down.

Howe explained they know the result of the City’s deliberation on the
determination of significance.He said
they don’t know what the County’s determination would be and what the ultimate
answer would be.He said if the County
goes to yes and the item was appealed to LUBA, LUBA would look to what the City
of Eugene and Lane County did and possibly remand the decision. He added that it
could go back to the City to go through the process.

Dwyer stated they need to get the report that the City wasn’t
interested so they will have a report for a basis for their determination of
significance that would satisfy Fleenor or any other skeptic and it would be
able to be a tool for LUBA to analyze when they make their decision on whether
to remand.He indicated the decision is
going to be based on facts and if the City of Eugene refused to listen to the facts
because they were afraid where the facts may lead, then the County would be in
good standing.

Vorhes said if the Board of Commissioners were to reopen the record and
take in additional evidence and testimony at this stage and the City doesn’t
have that in front of their decision making body because they have not reopened
the record to consider the evidence, their decision will be judged on the
evidence in front of them, not other evidence that has been presented to this
Board.He said on an appeal to LUBA on
the City’s decision, if that is a final land use decision, the review of the
decision will be the evidence of record before the City at the time of their
decision.He said if this Board decides
to reopen the record, having additional evidence and testimony presented, they
could do it but they would create additional process risks if they could come
to a conclusion based on the evidence in record.He suggested the Board act on the process that is pending in
front of the Board and shape the discussion later with the City on where it
goes and if the City concludes that they don’t want to move further, then it
could come back to the Board.He
indicated at some point the Board needs to take action on this application.

Green and Stewart concurred on moving forward with the process.

Step 1

Howe explained that Step 1 is to determine if the post acknowledgement
plan information is adequate.He said
it is the step that constitutes the essential completeness check for the post
acknowledgment plan amendment.He said
it isn’t whether all of the approval criteria are met or are approvable; it is
if all the criteria had been addressed. He indicated it was staff’s
recommendation that they had addressed all of the criteria and they have a
complete application.

MOTION:to accept the staff recommendation that all
requirements of Step 1 have been met.

Dwyer MOVED, Green SECONDED.

VOTE:5-0.

Step 2

Howe explained that Step 2 determines if the resource site is
significant.He stated that an
aggregate site shall be considered significant if adequate information
regarding the quantity, quality and location of the site demonstrates that the
site meets any one of the following criteria:the rock meets ODOT specification for base rock for air degradation,
abrasion and sodium sulfate soundness and the estimated amount of material is
more than 2 million tons; or if the site is in an area where there would not be
more than 35 percent of the mining area consisting of soils classed as 2 or 1,
unless the average in the rule refers to it as width of the aggregate layer
within the mining area exceeds 60 feet.He said the significance is determined if there is 2 million tons that
meet ODOT specifications and if they in an area of agriculture soils that are
of high quality, then it has to be at least 60 feet in depth.

Green indicated that the record shows it is 70.5 feet and it meets the
standards.

MOTION:to accept staff’s recommendation that it is
at 70.5 feet and meets the ODOT standard for aggregate.

Green MOVED, Dwyer SECONDED.

VOTE:4-1 (Sorenson dissenting).

Step 3

Howe said this is to determine if conflicts from mining could be
minimized.He indicated a progression
of things must happen in this step:the
impact area must be defined, and the impact area is limited to 1500 feet from
the boundaries of the mining area except where factual information indicates
substantial conflicts beyond this distance.He added that existing uses within the impact area must be identified,
potential conflicts from the proposed mining on the existing uses must be
identified and potential conflicts must be evaluated to determine whether they
can be minimized.He noted that if they
can be minimized, then mining shall be allowed at the site.He added if it is determined that there are
no conflicts or those conflicts could be minimized, then they proceed to Step
5.He said if it is determined there
are conflicts that could not be minimized, they would go to Step 4.

Dwyer stated they have an existing company and they are not changing
their practices; they are continuing operations.He said the conflict is not with the gravel company; it would be
with the hospital.He said the City of
Eugene has no problem with loading up the interchange with ambulances.

Fleenor said the gravel operations would be getting closer to an established
community.He had concerns about noise
and dust.

Sorenson thought there was a conflict with traffic.

Stewart indicated there is an existing operation.He asked if the existing operation had any
conflicts.

Stephanie Schulz, Land Management, indicated that the conflict due to
traffic would be increased.

Dwyer stated the record showed they would not be increasing traffic and
there was no conflict with traffic.

Green asked what the potential conflict was with traffic.

Howe explained that potential conflicts under this category are those
to local roads for access and egress to the mining site within one mile of the
entrance of the mining site unless a greater distance is necessary in order to
include the intersection with the nearest arterial identified in the
transportation plan.He said that
conflicts shall be determined based on clear and objective standards regarding
site distances, road capacity, cross section elements, horizontal and vertical
alignment and similar items in the transportation plan and implementing
ordinances He said such standards for trucks associated with the mining
operation shall be equivalent to standards to other trucks of equivalent size,
weight and capacity to haul other materials.

Green stated on the record there is no increase in the product delivery
services associated with the proposed use of the expansion area.He said it appears that the applicant had
met the test as it relates to traffic.

Howe indicated that the Department of Public Works Transportation Planning
came to the conclusion that a traffic impact analysis was not necessary because
there isn’t a change in the traffic loading of that area as a result of this
proposed amendment.He said if the
Board finds that this impact is not a significant conflict, there are no
conditions on it.He said if they find
an impact, then the applicant needs to show how they are going to minimize the
impact.He added if they can
demonstrate how they are minimizing the impact, then they go on to the next
step. He indicated that the impact analysis has been completed.

Vorhes said in looking at the scope of the application and the proposal
as it was presented to the Board, if there was an approval amendment to make it
clear that it is based on the represented level of operation and type of
operation, then that is the assumption on which the findings were based.He said there could be a piece of the
equation that would state if there is a significant change in the operation
from what was in the application that brought the amendment to approval, that
it needs to be addressed as a separate amendment.He added there is a way to address that in the rule.He indicated there might be conditions that if
there are necessary things to be included in order to assure that significant
conflicts are minimized to the point where they are no longer significant,
those things could be included as well as conditions of approval.He noted there were some that had been
brought forward from the Planning Commission action.

Dwyer said they are going on the faith with current operations, current
traffic volume, the conflicts associated with it and if they could be
mitigated.He indicated according to
their transportation department and the record, their concerns have been
addressed.

Sorenson asked if the planning commission dealt with traffic in their
deliberations.

Stewart recalled that both planning commissions said there was no
impact beyond 1500 feet.

Howe said the record shows there is no conflict of traffic.He said this presumes that because there is
no change other than the resource based from the existing operation, that there
aren’t additional impacts.

Schulz noted part of the County engineer’s waiver was a consideration
that there are planned improvements in that area approved in their
transportation plan.

MOTION:to move the recommendation that there is no
traffic conflicts.

Green MOVED, Dwyer SECONDED.

VOTE:4-1 (Sorenson dissenting).

Howe stated there was nothing in the record that established that there
are conflicts that extend beyond 1500 feet.He said that is an action the Board needs to take.

Groundwater Conflicts

Schulz said conflicts for groundwater are not
addressed by local state or federal standards.She said they don’t have a threshold that some of the other conflicts
do.She said groundwater deals with
construction of the groundwater barrier and aquaclude.She said the planning commissions found
unanimously that there was a conflict due to groundwater.She said the aquaclude low permeability
barrier was proposed as mitigation and the aquaclude was found on one part to
not minimize the conflict and that was the opposite recommendation. She said
staff recommends that the aquaclude would minimize the conflict.

MOTION:to state that there is a conflict due to groundwater.

Sorenson MOVED, Fleenor SECONDED.

Dwyer thought there was a conflict but the record showed the conflict
could be mitigated.

Green stated the applicant has the burden of proof.He agreed there was a conflict due to
groundwater, but the applicant has to address the conflict, to minimize it.

VOTE:5-0.

Is there factual information in the record that indicates that the
groundwater conflict extends beyond 1500 feet from the boundary of the
expansion area?

Schulz indicated there was significant analysis in the record in the
actual application reviewing the function of the groundwater with or without
the aquaclude.

Dwyer stated there was a conflict with the groundwater but it showed
that it could be mitigated with the aquaclude.He thought the mitigation and the aquaclude were sufficient.

Dwyer recalled if there were any impacts as a result, that the
applicant would rectify them.

MOTION:that there is factual information in the
record that indicates a groundwater conflict extends beyond 1500 feet from the
boundary of the expansion area.

Sorenson MOVED, Fleenor SECONDED.

VOTE:5-0.

Can the conflict due to the groundwater be minimized through the
condition proposed by the applicant to a level of no significance?

MOTION:to move that the record shows that the plan
for minimizing the conflict could be minimized.

Dwyer MOVED, Green SECONDED.

Stewart asked if the record showed there would be monitoring wells to
make sure the aquaclude was working and the groundwater is not affected.He asked if that could be added.

Schulz responded that question had not been proposed.She noted that the design of the aquaclude
was revised through the process.

VOTE:3-2 (Fleenor, Sorenson dissenting).

Was there a conflict due to wetlands or sensitive habitat?

Schulz noted for wetlands there is the western boundary of the
expansion site in the Metro Goal 5 Inventory as a Category D wetland.She said there are setbacks and the
aquaclude will be developed outside.She noted that both planning commissions found that there was a conflict
on wetlands, one commission said it could be minimized, the other said it
couldn’t.She indicated the protection
criteria was a DLCD criteria on the wetlands under Goal 5.She said the setbacks would be further out
with the aquaclude than with the Goal 5 wetland setbacks.She stated that staff recommendation is that
it is minimized with the setbacks.

MOTION:that there is a conflict with wetlands.

Dwyer MOVED, Green SECONDED.

Stewart noted page 1313 in the wetlands conflicts stated that no
conflict could be analyzed as part of this PABA application for site E 57 in
the quarry pit.He asked if there was
not a conflict.

Schulz responded that they had not completed the Goal 5 natural
resources adoption at the Board for those areas between the city limits and the
urban growth boundary.

Sorenson asked if the phrase "the conflict extends beyond 1500
feet from the boundary of the expansion area" means within 1500 feet.

Howe indicated that under Step 1 of the process if there is a conflict
due to wetlands, it would be in the impact area as measured out to 1500 feet
for every one of the conflicts they are reviewing. He added there is a second
question that asks if there was information in the record that demonstrates
that the conflict actually extends beyond 1500 feet.

Dwyer stated his motion referred to the wetlands within 1500 feet.

VOTE:5-0.

Is there factual information in the record that indicates the wetlands
or sensitive habitat conflicts extends beyond 1500 feet of the boundary
expansion area?

Stewart stated staff said no.

MOTION:to move that the wetlands or sensitive
habitat conflict does not expand beyond 1500 feet and they adopt the staff
findings.

Dwyer MOVED, Fleenor SECONDED.

VOTE:4-1 (Sorenson dissenting).

Can the conflict due to the wetlands or sensitive habitat be minimized
through the conditions proposed by the applicant to a level that meets the DLCD
removal permit requirements of OAR 141-85.

MOTION:to move the conflicts could be minimized.

Dwyer MOVED, Green SECONDED.

VOTE:3-2 (Sorenson, Fleenor dissenting).

Is there a conflict due to flooding?

Sorenson thought there was a conflict.

Howe said there is a theory under the FEMA regulations that if they are
doing fill, then they would have an impact on flooding, but if they are
excavating, they are not.He commented
they could be minimizing future flooding impacts.

Stewart indicated that the Lane County Planning Commission stated there
was a conflict due to flooding and the Eugene Planning Commission stated there
wasn’t.He said the Lane County and
Eugene Planning Commissions said the conflict couldn’t be minimized.

MOTION:to move that there is no conflict due to
flooding.

Fleenor MOVED, Dwyer SECONDED.

Green indicated that the report from EGR concludes that the method of
mining does not impede flooding.

VOTE:4-1 (Sorenson dissenting).

Is there a conflict due to agricultural practices?

Howe explained that under agricultural, the standards are
different.He noted under the Goal 3
Rule, it won’t force a significant change in accepted farm use nor increase the
cost to conduct farming significantly.He stated that was the standard for how the test is made.

With regard to the findings, Schulz reported that both planning
commissions found that there was a conflict within the impact area and Lane
County voted that the conflicts with agricultural practices could not be
minimized and the Eugene Planning Commission had the opposite finding.She said that staff thought the conflicts
could be minimized.

MOTION:that there is a conflict for agricultural
practices.

Fleenor MOVED, Sorenson SECONDED.

VOTE:2-3 (Dwyer, Green, Stewart dissenting).MOTION FAILS.

Is there factual information on the record that indicates that the
impact of agricultural practices extends beyond the 1500 feet from the boundary
of the expansion area?

MOTION:to move there is no impact beyond the 1500
feet boundary area.

Dwyer MOVED, Fleenor SECONDED.

VOTE:4-1 (Sorenson dissenting).

Can the conflict due to agricultural practices be minimized through
applicant’s proposed conditions to a level that would not force a significant
change in accepted farm use nor increase the cost to conduct farming
significantly?

Stewart indicated the agricultural practices standard is found under
the provisions of ORS 215.296. He commented that the use of the property as a
gravel operation will preclude the use of the property for farming.He said it could not be minimized.

Dwyer stated they were discussing the economic impact on those uses
after this was allowed.

Stewart understood they weren’t discussing the farming the rock pit
would displace, they were talking about the farming within the 1500 foot
boundary that is next to the operation and if the operation could be minimized
on the neighboring property.

Dwyer stated the record showed the neighbor came in and testified in
favor of it and it hadn’t caused him any significant increase.Dwyer didn’t think it would be significant.

Fleenor thought it should be the conflict due to surrounding
agricultural practices being minimized.He thought the terminology of the sentence could be better if they put
"surrounding agricultural practices" or "the cost to conduct
surrounding farming significantly."

Green asked if they had the flexibility to do wordsmithing.

Vorhes said the rule is a benchmark for the decision making.He noted what the rule says regarding
conflicts is "conflicts with agricultural practices."He added when they are looking at conflicts
the rule describes, they are looking at conflicts beyond the mining area.He said the assumption is the mining is
going to happen and when and if it does, what conflicts will occur within 1500
feet of the mining area that is the area of the property that is subject to
change.He added there is the ability
to go beyond the first 1500 feet from the perimeter of the mining to look if
there is factual evidence in the record that establishes that doing the mining
within the mining area creates impacts or conflicts with accepted land uses
beyond the first 1500 foot area.He
added it goes as far as they can with evidence that states there are those
kinds of impacts and they have to be significant.He said the analysis is driven by the rule again and it discusses
the test that is excerpted out of the statute and looks at whether this mining
would force a significant change in farm or forest practices on surrounding
lands devoted to farm or forest use or would significantly increase the cost of
accepted farm or forest practices on surrounding lands devoted to farm or
forest use.He said that was the test
the Board would need to make findings on and address in their deliberations:
are there conflicts that rise to this level and if so, what are some of the
mitigation measures the applicant had proposed to address those conflicts, if
any.

Dwyer recalled the people farming that surround the mine said there
would be no conflict as a result of this operation.

MOTION:that the practices could be minimized.

Green MOVED, Dwyer SECONDED.

Vorhes explained for the rule language, all it states is
"conflicts with agricultural practices."He said the main testimony for impacts to farmers located closest
to this operation is in the area that would be mined.He said they would go beyond that 1500 feet or further if there
are facts showing impacts to agriculture.He said if they identify conflicts with agricultural practices, the way
they determine whether it is minimized or not is they look at the statutory language
and they determine whether they can with the measures proposed.He added if the conflicts don’t rise to the
level of forcing a significant change or significantly increase the cost of
agricultural practices, that is where the surrounding language comes from.He noted the surrounding area for analysis
starts at identifying the impact area and that is measured from the perimeter
of the proposed new mining operation and the rule starts with a baseline of
1500 feet.He noted some conflicts
could go beyond the 1500 feet and the rule allows for that.He said if they have the evidence to
establish it does, they analyze the impacts and conflicts and what could be
done to minimize those conflicts and make them no longer significant.

VOTE:4-1 (Sorenson dissenting).

Is there a conflict due to dust?

Schulz indicated that dust was identified as a conflict on the project
and that the conflict could not be minimized to a level meeting the standards
set by LRAPA.

Dwyer asked if that was the case, how they were able to currently
operate.

Schulz said they currently meet their permit.She indicated there was discussion and input on this topic and
dust and noise were the highest conflicted items and that was how the planning
commissions voted.She reported the
votes were Lane County 3-2 (one abstention) and Eugene 3-2 that the conflict
could not be minimized.

Howe explained when it comes dust, there is an agency standard and the
rule says if the proposal meets the standards required by the agency, then the
conflict is minimized.

Dwyer asked if the proposal met the standards required by the agency.

Howe said it did.He added what
the record establishes is what they are proposing to do will fall within the
standards of the LRAPA discharge permits for dust.

Green asked if there had been any evidence on the record to show the
level of complaints or citations that LRAPA had issued.

Howe said the record has information about the alleged complaints to
LRAPA.He recalled that one of the
complaints had to do with spraying that didn’t occur on a winter freezing day
and upon LRAPA doing their investigation, they dismissed the allegation because
it would have frozen if they would have sprayed for their dust abatement
efforts.He added another complaint was
dismissed because it wasn’t at the location, it was at another Delta operation.

Green asked in absence of LRAPA who regulated air quality in the other
35 counties.

Howe responded that it is the DEQ.

Green asked if LRAPA took an official position in the record.

Dwyer stated the new application does not exceed the discharge permit
for LRAPA.

Green indicated that LRAPA stated on the record that it does not exceed
their level.He asked if that
information was on the record, how both planning commissions could get to a
situation that it couldn’t be minimized.

Vorhes said the test for minimization in the rule is for those types of
conflicts addressed by local, state or federal standards such as DEQ.He added for noise and dust levels, to
“minimize a conflict” means to ensure conformance to the applicable standard.He indicated that part of the debate was
around how good was this company in staying within the requirements and what
are the violations with the current operations.He noted in the final analysis they look to what is the potential
and could they comply with the rule.He
said if the Board concludes they had shown enough to state they could comply
with the standard, they could reach the conclusion they would minimize the
conflict.

Howe indicated there was additional information that was provided to
the elected bodies that was not available for the planning commissions that
showed how they were watering where the extraction was taking place.

Fleenor thought there would be a conflict with dust initially that does
not exist today.

MOTION:that there is a conflict due to dust.

Fleenor MOVED, Green SECONDED.

VOTE:5-0.

Is there factual information on the record that indicates that the dust
conflict extends beyond 1500 feet from the boundary of the expansion area?

Schulz reported a conflict with dust that could not be minimized was
the planning commission recommendation.She said in looking through the minutes of the joint continued public
hearing held in January, windrows diagrams were provided that show where the
wind comes from.She said there were
different experts with different diagrams.

Fleenor stated since they had determined there was a conflict due to
dust, he said there was a likelihood that a wind would blow dust 1500 feet from
the boundary.

MOTION:that there is a conflict with dust that
extends beyond 1500 feet.

Fleenor MOVED, Sorenson SECONDED.

Dwyer asked what the record showed.

Howe said there were a number of reasons why the planning commissions
thought dust wasn’t minimized.He said
they can’t find in the record whether they thought it extended beyond 1500
feet.

Fleenor modified his motion that the record reflects that there is no
indication that the dust would extend beyond 1500 feet.

Fleenor MOVED, Sorenson SECONDED.

VOTE:4-1 (Sorenson dissenting).

MOTION:to move that the conflict can be minimized.

Green MOVED, Dwyer SECONDED.

Green indicated there was another document in their files from the
environmental assessment corporation.He said it talks about the examination of the complete LRAPA files for
Delta Sand and Gravel that did not show any complaints from residents from the
southwest, west or northwest of the existing operation.He said there was some concern raised by one
member of both planning commissions that had expressed some skepticism about LRAPA’s
ability to respond.He added the record
also showed that any time there was an issue of compliance with LRAPA, the same
was true with the applicant’s behavior to respond to any issues to show the
owners of the operation are responsive to it.He supported the motion.

VOTE:4-1 (Sorenson dissenting).

MOVE:to continue deliberation to May 23, 2007.

Sorenson MOVED, Fleenor SECONDED.

VOTE:5-0.

There being no further business, Commissioner Fleenor recessed the
meeting at 3:30 p.m.